Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

Supreme Court Justices Weigh Prayers at Municipal Meetings

The U.S. Supreme Court struggled on Tuesday to find a way to uphold prayers at municipal meetings without tramplng the rights of religious minorities.

Importantly for school boards, the justices said nothing that suggested they would treat local education governing bodies any differently than other municipal entities. The case before the court involves the town council of Greece, N.Y., which for years opened its meetings with clergy-led prayers that were predominantly Christian and often proselytizing.

Thomas G. Hungar, a Washington lawyer representing the town, said that prayers "at the local level" did not violate the First Amendment's bar on government establishment of religion and should be upheld under the longstanding American tradition of prayers in Congress and in state legislatures.

"It makes no sense to suggest that a prayer at the local level is more dangerous for establishment clause purposes than what Congress is doing," Hungar said during the arguments in Town of Greece, N.Y. v. Galloway (Case No. 12-696). "To suggest there are greater restrictions on municipalities makes no sense at all,"

Douglas Laycock, of the University of Virginia law school in Charlottesville, representing the Greece residents who challenged the prayers, said attendees at the town's meeting are coerced into participating in the heavily sectarian prayers in violation of the establishment clause.

"What's coercive about it is it is impossible not to participate without attracting attention to yourself, and moments later you stand up to ask for a group home for Down syndrome child ... or whatever your petition is, having just, as far as you can tell, irritated the people that you are trying to persuade," he said.

Laycock was not seeking an outright ban on municipal prayers but a ruling that would require communities to provide guidance to clergy members on delivering non-sectarian, non-proselytizing invocations.

"We've done this kind of prayer in our country for 200 years," he said.

Laycock quickly ran into resistance from Justice Samuel A. Alito Jr., who challenged him to suggest a non-sectarian prayer that would be acceptable to Christians, Jews, Muslims, and members of all other faiths.

"We have a very religiously diverse country. I just don't see how it is possible to compose anything you could call a prayer that is acceptable to all of these groups," said Alito, who made clear that he believed municipal prayers were OK and that clergy members should be unfettered.

The question for the court is whether to apply to municipal prayers a 1983 decision, Marsh v. Chambers, which upheld prayers in the Nebraska legislature as akin to the tradition of legislative prayer that went back to the First Continental Congress.

Justice Antonin Scalia said members of town councils and members of Congress are "there as citizens. ... And as citizens, they bring to the job all of their predispositions that citizens have. And these people perhaps invoke the deity at meals. They should not be able to invoke it before they undertake a serious governmental task such as enacting laws or ordinances?"

Several members of the court aggressively questioned Hungar and Ian H. Gershengorn, the deputy U.S. solicitor general, who was also arguing on the town's side.

Justice Elena Kagan read from a heavily sectarian prayer that had been delivered at the Greece town council, with references to "the sacrifice of Jesus Christ on the cross" and "we draw strength from his resurrection."

"What troubles me about this case is that here a citizen is going to a local community board [that is] suppose to be the closest, the most responsive institution of government that exists, and is immediately being ... forced to identify whether she believes in the things that most of the people in the room believe in," Kagan said. "And it strikes me that that might be inconsistent with this understanding that when we relate to our government, we all do so as Americans, and not as Jews and not as Christians and not as nonbelievers."

Justice Anthony M. Kennedy, who is often at the center of the court's decisions on religion (as is so many other issues), wondered whether the tradition of legislative prayer applied to something like "a utility rate-making board."

"I don't think the public would understand that," he said. "The essence of the argument is, 'We've always done it this way,' which has some force to it."

Despite the ambivalence of many of the justices' comments, it appeared that a majority was struggling to find a way to permit municipal prayers in some form.

Kennedy suggested it "sounds very elitist" for the court to suggest legislative prayers were permissible in Washington or a state capital such as Austin, Texas, "but not up in Greece, N.Y."

Justice Stephen G. Breyer asked repeatedly whether municipalities might be required to cast a wider net for a diversity of clergy to lead the prayers, and that the clergy members be given instructions on keeping their prayers non-sectarian and non-proselytizing.

Implications for School Boards

Justice Ruth Bader Ginsburg said during the argument that she understood the town's arguments to apply not just to town council meetings, but to "a school board, a zoning board, a utilities board."

In fact, the implications of this case for prayers before school board meetings have not been crystal clear. Two federal appeals courts have ruled that school board meetings are distinguishable from many other municipal meetings because of the frequent participation of children and the close ties to schools.

Those courts, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, and the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., concluded that the Supreme Court's coercion test from its 1993 graduation-prayer case, Lee v. Weisman, applied to school board meeting prayers instead of the Marsh decision.

There was relatively little discussion of school boards specifically in the briefs in this case, though the challengers to the town of Greece's prayers made the argument that students are regular attendees at the council meetings.

"High-school students attend board meetings to receive up to three hours' credit toward a participation-in-government requirement," the challengers' brief notes.

Gershengorn pointed out that "often children were in the galleries of state legislatures being acknowledged."

"The high school students to whom [the challengers] refer can fulfill that [participation] requirement by attending any number of government functions, including library meetings, court sessions, and zoning hearings," the brief says. "No student is required to attend a Town Board meeting. Moreover, state and local legislative meetings are far different from school functions, as they are not focused on the instruction or indoctrination of young people."

Toward the end of Tuesday's argument session, Justice Kagan observed that the Supreme Court's many forays into religion issues never seem to satisfy everyone.

"The court lays down these rules and everybody thinks the court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways," Kagan said. "Part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way. And every time the court gets involved in things like this, it seems to make the problems worse rather than better."

A decision is expected by next June.

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